State v. Ellison

• Citation: 223 S.W. 671
• Decision Date: 12 July 1920
• Docket Number: No. 21859.,21859.
• Parties: STATE ex rel. CITY OF ST. JOSEPH v. ELLISON et al., Judges.
• Court: United States State Supreme Court of Missouri

223 S.W. 671

STATE ex rel. CITY OF ST. JOSEPH v. ELLISON et al., Judges.

No. 21859.

Supreme Court of Missouri, in Banc.

July 12, 1920.

Certiorari by the State of Missouri, on the relation of the City of St. Joseph, against James Ellison and others, judges of the Kansas City Court of Appeals, to quash its record in Bradford v. City of St. Joseph, 214 S. W. 281. Writ quashed.

Louis V. Stigall, City Counselor, Charles W. Meyer, First Asst. City Counselor, and Perry A. Brubaker, all of St. Joseph, for relator.

John G. Parkinson, A. L. Ray, and Duvall & Boyd, all of St. Joseph, for respondents.

BLAIR, J.

Certiorari. Relator's contention is that the decision of the Kansas City Court of Appeals in the case of Bradford v. City of St. Joseph, 214 S. W. 281, conflicts with controlling decisions of this court. The statement of the facts in the opinion of the Court of Appeals is as follows:

"The evidence on both sides also agrees that the pole was in fact rotten; but there is a difference between them as to the extent of the decay, and also over the question of whether the pole, at the time of inspection, could or could not have been regarded as reasonably safe to be climbed notwithstanding the decay.

"There is no question but that it was the foreman's duty, and not the plaintiff's, to inspect the pole to ascertain its condition. The evidence on both sides further shows that when a pole has been inspected and found to be unsafe, or `weak and swingy,' as one of plaintiff's witnesses put it, the foreman should have it braced by means of pikes, and that when plaintiff climbed the pole after the foreman had inspected it there were no braces thereon; none having been put up or ordered by the foreman. As to whether plaintiff was ordered by the foreman to climb the pole, plaintiff's evidence tends to show the foreman did so order him, while defendant's tends to show that he did not.

"With matters in this shape, appellant contends the demurrer to the plaintiff's case should have been sustained. We are clearly without authority or power to so hold. In view of the verdict, we must accept all of plaintiff's evidence (not inherently unreasonable or contrary to well-known physical laws and the common experience of mankind) as true, together with all reasonable inferences the jury were entitled to draw therefrom.

"At Fourth and Dolman streets was an electric light in the center of the street intersection, suspended from a wire or cable between two poles on opposite corners. The pole on the east side was leaning and was to be straightened. About 75 feet or so north of this pole was a stub pole to which a guy wire was attached, holding the corner in place. This stub pole was the one that fell. It was 20 feet high, 6 inches in diameter at the top, and 10 inches thick at the ground. This pole leaned slightly to the south. In addition to the guy wire, attached about 7 or 8 feet up the pole, was a telephone wire fastened to the top of it.

"The foreman and all of the men under him, except plaintiff, went from where they had been working to Fourth and Dolman streets in order to straighten said lamp pole. Plaintiff stopped on the way to see a relative, or some one else, for a short time. When the men arrived at the place in question, the foreman put a man to digging at the north side of the stub pole, to enable him to test the pole's soundness below the top of the ground. After this had been done, the foreman came to the pole, and by striking into it with a tool ascertained that it was rotten. He then said he would take the pole out, cut it off, and reset the sound portion, and ordered the digger to dig a hole close to and on the north side of the pole. This the digger began doing. Plaintiff had not arrived, but came very shortly thereafter. Even some of the defendant's witnesses say plaintiff had not arrived when the testing of the pole and the decision to reset it took place, though they say they told him it was decayed and was to be reset. When plaintiff did arrive at the street intersection, he stopped near the wagon 100 feet or so south of the stub pole. Plaintiff says the foreman came down there to him, and told him to take down the lamp, which plaintiff did, and carried it over and laid it down on the sidewalk; that then the foreman said to him: `Jim, go and climb that pole and cut off the guy wire and go up and take off the telephone wire.' Plaintiff, having put on his climbers, walked to where the pole was, and went up it. He says he saw the man digging north of the pole, but took no notice of how deep he had dug, nor did he stop to inspect the pole. He says it was not customary for, or the duty of, a lineman to inspect a pole when the foreman is on the ground, but only when a lineman is sent out alone and on his own responsibility; that he had no thought of danger, as the foreman had been to the pole, and had it been considered dangerous, the pole would have been braced with pikes according to the usual method and custom. As he was ordered to do, he went up the pole, and, as he was told, cut off the guy wire, and then went on up to the top to remove the telephone wire which came to the pole from the northeast. To do this required the use of both of his hands, so he secured himself to the pole by means of the safety belt, and removed the telephone wire, calling to a man below to catch it lest it break the windows in a nearby church. When he let go of the telephone wire, the pole broke and fell to the northwest across plaintiff's hips and groin, severely and painfully injuring him.

"Under the foregoing circumstances, if the foreman failed to exercise ordinary care in ascertaining whether the pole was or was not reasonably safe to be climbed, and ordered plaintiff to go up the pole and remove the wires, then there can be no doubt of defendant's liability. Clearly, whether plaintiff was or was not so ordered was a question for the jury, and not for us, to decide. It was at most merely a question of veracity between plaintiff and the foreman. The defendant's other witnesses were busy at the time, and the substance of their testimony is that they did not hear the foreman give any such order, but they could not affirmatively say no such order was given. A lady sitting on an adjacent porch, testifying for plaintiff, says she saw a man, who from his actions she took to be the foreman, come from where the pole was down to where plaintiff was near the wagon, and say something to him, whereupon plaintiff immediately went to the pole and climbed it, and when it fell was hurt. Another witness says the foreman said something to the plaintiff, and thereupon the plaintiff went to the pole and climbed it. What it was the foreman said witness did not know. So that there was ample justification for the jury finding that plaintiff was ordered up the pole as he claims he was. However, even if every one of defendant's witnesses had testified positively that the foreman did not so order him, nevertheless the testimony of plaintiff that he did would have made a question for the jury. We mention the above merely to show that plaintiff's case does not rest solely on his unsupported testimony, nor was it so overwhelmingly contradicted as appellant seems to think."

I. Relator contends the Court of...